St. John v. German-American Insurance Company

• Decision Date: 18 October 1904
• Citation: 82 S.W. 543,107 Mo.App. 700
• Parties: ST. JOHN, Respondent, v. GERMAN-AMERICAN INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

82 S.W. 543

107 Mo.App. 700

ST. JOHN, Respondent, v. GERMAN-AMERICAN INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

October 18, 1904

Appeal from Greene Circuit Court.--Hon. James T. Neville, Judge.

Judgment affirmed.

Fyke Bros., Snider & Richardson for appellant.

(1) Under the plain terms of the contract it was the duty of insured to produce for defendant's examination bills of purchases of goods. He kept no books. His loss could not be arrived at without some knowledge as to the amount of goods purchased. The condition is reasonable. Compliance with it was demanded. It was not complied with. It was not waived. Hence the court erred in refusing defendant's instruction 4, and in giving a peremptory instruction to find for plaintiff. Fleisch v. Ins. Co., 58 Mo.App. 604; Muller v. Ins. Co., 45 Mo. 84. (2) When blank forms for proofs of loss were transmitted by defendant to plaintiff a blank form for such certificate was included, and when the proofs were sent to defendant with a defective certificate the attention of plaintiff was called to the omission, and he was notified that compliance must be had. Ins. Co. v Bank, 62 F. 222; Swearinger v. Ins. Co., 66 Mo.App. 90.

J. J Collins and Henry C. Young for respondent.

(1) When Mr. Collins wrote and requested blank proofs for making up additional proofs of loss, he was met with a flat denial of liability on the part of the company. This operated as a waiver of the amended certificate, and certified copies of bills, invoices or vouchers. Welsh v. Life Soc., 81 Mo.App. 41; Probst v. Ins. Co., 64 Mo.App. 486; Cauverin v. Ancient Order of Pyramids, 98 Mo.App 433, 72 S.W. 141. The instructions were therefore properly denied. (2) By section 7977, Revised Statutes 1899, it is provided that after notice of the loss shall have been given to the company or its agent, "then it shall thereupon become the duty of such insurance company to furnish to the person, etc., incurring such loss or damage, such blank forms of statements and proofs of loss as such insurance company may desire to be filled out, etc." And by virtue of section 7978, Revised Statutes 1899, a failure, neglect or refusal to furnish such blanks "in case of loss or damage by fire as provided in the preceding section," will operate as a waiver of such proofs of loss. As before stated, notice of the loss was given to Mr. Diggins, the local agent, on the day after the fire--March 31. The adjuster came on April 3, and it was not until May 5 that blank proofs of loss were forwarded by the agent of the company from Hannibal. On March 31, upon receipt of notice of the loss it "thereupon" became the duty of the company to furnish these blanks. In other words it became its duty to do so "immediately, at once, without delay." Webster's Unabridged Dictionary; 25 Am. and Eng. Ency. of Law, p. 1058; Hill v. Ward, 47 Kan. 340, 27 P. 988; Putnam v. Langley, 133 Mass. 204. (3) The company had therefore waived all right to these proofs of loss before it forwarded the blanks. Meyer Bros. v. Ins. Co., 73 Mo.App. 166.

BLAND, P. J. Reyburn and Goode, JJ., concur.

OPINION

BLAND, P. J.

On May 23, 1901, the defendant company issued to plaintiff its policy of insurance insuring his stock of merchandise (a grocery stock) in the sum of three hundred dollars and his household and kitchen furniture in the sum of two hundred dollars against damage or loss by fire for the period of one year. On the thirtieth day of March, 1902, the merchandise and furniture insured were mostly destroyed by fire. The suit was on the policy to recover the loss.

The answer admitted the insurance and delivery of the policy, but set up as a defense the failure of plaintiff to make proofs of loss as he was required to do by the terms of the policy.

At the close of the evidence the defendant moved the court to give sundry instructions; one was that under the pleadings and evidence the plaintiff was not entitled to recover. All these instructions were refused and the court of its own motion gave the following instruction:

"You are instructed that the evidence in this case on the part of both plaintiff and the defendant shows a waiver of the requirements of the policy in regard to proofs of loss.

"If, therefore, you find that plaintiff's goods were covered by the policy, and while the policy was in force, were destroyed by fire, you will find the issue in favor of plaintiff, and you will in that case assess his damages at the reasonable value of the goods destroyed, not to exceed the amount of two hundred dollars on the household goods, and not to exceed the sum of two hundred and forty-four dollars on the merchandise. You are not allowed anything for furniture and fixtures."

The propriety of giving this instruction, under the pleadings and the evidence, is brought here for review by the appeal.

The evidence of plaintiff tended to show that the loss on the merchandise, exclusive of fixtures, was about two hundred and forty-six dollars, and on household and kitchen furniture about four hundred dollars. The damages assessed by the jury were four hundred and forty-four dollars. The policy required immediate notice of loss should be given the insurance company after a fire, and that proofs of loss should be furnished within sixty days.

H. W. Diggins, the agent of the company who issued the policy and who resided in Springfield, Missouri, where the loss occurred, was immediately notified by plaintiff of the loss, went to the fire and looked over the premises and then and there promised plaintiff that he would notify the company. In the course of two or three days, P. H. Knighton, the company's adjuster and special agent, appeared at Springfield, and in company with the plaintiff looked over the property that had been rescued from the fire and instructed plaintiff to make out an invoice of the goods that had been saved. Plaintiff made out invoices of the household and kitchen furniture that was saved, and of what had been lost as well, also an invoice of the portion of his grocery stock that had been saved, but was unable to invoice that portion of the grocery stock that had been lost by the fire, for the reason his bills of purchase had been burned in the fire and he had kept no book invoice of his purchases, and for the additional reason that a portion of the grocery stock consumed by the fire consisted of produce bought from farmer's wagons, of which no bills or invoices had been made. The invoices he prepared, he gave to Knighton who then demanded that plaintiff make out and furnish proofs of his loss. Plaintiff explained to him that his bills had been burned, that a portion of the stock lost consisted of country produce for which he never had any bills but that he would try and procure duplicate bills of the purchases made from wholesale houses and jobbers and furnish them as soon as he could. At this time Knighton had in his possession an invoice of the household and kitchen furniture that he himself had prepared, and offered plaintiff the sum of two hundred and fifty dollars in settlement of the entire loss. This offer plaintiff declined to accept and made a counter proposition which Knighton would not accept. Plaintiff testified, that at this juncture Knighton offered to submit the loss to arbitration, in accordance with the terms of the policy. Knighton, however, denied that he ever offered to submit the loss to arbitration, but that plaintiff made a proposition to submit the matter to arbitration which he declined to accept for the reason no proofs of loss had been made. Knighton left Springfield on the following day, and the next communication plaintiff had from him was the following letter:

"Hannibal, Mo., 4--14--1902.

"B. S. St. John, Esq.,

"Springfield, Mo.

"Dear Sir:

"This is to notify you that my visit to Springfield, Missouri, on the third and fifth inst. was solely for the purpose of investigation and not for the purpose of adjustment and settlement of your loss under policy No. 1422.

"This is to give you due notice that the German-American Insurance Company neither admits nor denies liability under said policy, and does not waive any of the conditions and stipulations contained in said policy No. 1422, issued to you through its agent at Springfield, Missouri.

"You are further notified to read your policy and comply with each and every condition named therein commencing at line one and ending at line No. 112.

"Very truly yours,

"GERMAN-AMERICAN INSURANCE CO.,

"By P. H. KNIGHTON, Special Agent."

On May 5, 1902, Knighton transmitted to plaintiff by letter, blank proofs of loss and invoices which plaintiff received. A day or two before the reception of these blanks, plaintiff had procured from Diggins, blank proofs of loss corresponding in form to those sent by Knighton, and from the duplicate bills he had procured from the wholesale houses with which he had been trading, and from his recollection of the stock, filled up the blank proofs of loss and had them ready to send in at the time he received the blanks from Knighton. He filled in the blank invoices Knighton had sent him, attached them to the proofs of loss and mailed them to Knighton. On May 26, 1902, Knighton wrote plaintiff the following letter, inclosing the proofs of loss:

"Hannibal, Mo., May 26, 1902.

"B S. St. John,

"Springfield, Mo.

"Dear Sir:

"I am in receipt of certain paper, that you call proofs of loss and schedules thereto attached. If you intend these for proofs of loss, as provided in the conditions named in the policy, number 1422, issued to you by W. H. Diggins & Company, agents, at Springfield, Missouri, of the German-American Insurance Company, of New York, this is to notify you that they are not complete. The...